Abusing Due Process

Totalitarianism is brewing in the heartland. An Indiana inmate is now serving two years for voicing his online opinions against a judge who took away his child-custody rights during a divorce case. I know the custody case pretty well having written about it in 2009. But I'm convinced that the free speech case that is brewing in its aftermath heaps an even greater injustice upon an existing one. And I'm convinced it is showing the darker side of a dangerous man who needs to be stopped.

Dan Brewington is justifiably angry because James Humphrey took his kids away from him based on a report by an unlicensed psychologist. During the custody battle, Judge Humphrey also failed to provide adequate justification for his decisions as mandated by Indiana law. But that just makes him a bad judge. What he allowed to happen in the wake of Brewington's reaction makes Humphrey downright dangerous.

Dan Brewington was convicted in 2011 of intimidating a judge and attempting to obstruct justice. The Indiana attorney general’s office successfully argued that he exposed the judge to “hatred, contempt, disgrace or ridicule." There is no question that Dan Brewington broke the law when he went online and criticized Judge Humphrey for denying him the right to visit his own children. But the law criminalizing Brewington's criticism of the judge is patently unconstitutional. And Humphrey's complicity in the prosecution is simply unconscionable.

The Indiana Supreme Court will decide after this week's filing deadline on whether to hear a second appeal of this conviction. I hope they do take up the case in order to address some arguments by the Indiana appeals court, which affirmed Brewington's conviction. The appeals court argued that some of Brewington’s claims against Judge Humphrey were false. I do not concede that point. But, regardless, there is obviously a great danger in making alleged defamation of judges into a criminal offense - much less a felony.

But other arguments by the appeals court were even more dangerous. Perhaps most disturbing was the appeals court ruling that the truthfulness of Brewington's claims were not necessarily relevant to prosecution because the harm was striking fear and intimidation in the victim, Judge Humphrey. The fact that the target of criticism experiences fear absent a specific threat is not sufficient cause to negate free speech. The courts recognize that there is no heckler's veto of free speech. Nor should there be a coward's veto of free speech. Judges who declare men to be unfit fathers are going to be criticized. If they cannot take it, they aren't fit to be judges.